RUTH BEHAR V JAMES FOX
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
RUTH BEHAR and DAVID FRYE, Individually
and as next Friends of GABRIEL FRYE-BEHAR,
a Minor,
Plaintiffs-Appellants,
v
UNPUBLISHED
November 30, 2001
APPROVED FOR
PUBLICATION
January 18, 2002
9:25 a.m.
No. 225294
Washtenaw Circuit Court
LC No. 99-005009-NZ
JAMES FOX,
Defendant-Appellee,
and
Updated Copy
March 29, 2002
STEVE RUBIN and ANN ARBOR YOUTH
SOCCER ASSOCIATION
Defendants.
Before: O'Connell, P.J., and Sawyer and Smolenski, JJ.
PER CURIAM.
Plaintiffs Ruth Behar and David Frye, individually and as next friends of their elevenyear-old minor son, Gabriel Frye-Behar, appeal as of right from the trial court order that granted
defendants summary disposition pursuant to MCR 2.116(C)(10). Plaintiffs had filed a tort action
against defendants alleging that defendant James Fox, an assistant coach, was liable for using his
full effort in a soccer scrimmage against their son, and further alleging that defendant Steve
Rubin, the head coach, was negligent for failing to properly supervise the scrimmage and for
allowing defendant Fox to play at his full potential.1 We affirm.
Plaintiffs brought suit after their son tore his anterior cruciate ligament when defendant
Fox either collided with or kicked the boy in the knee during a soccer scrimmage. Defendants
moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that plaintiffs failed, as
1
Although originally a party to this appeal, defendant Rubin was dismissed as a party by
stipulation during the pendency of this appeal.
-1-
a matter of undisputed fact and law, to establish that defendant Fox' conduct was reckless.
Plaintiffs argued that the standard to be applied was negligence rather than recklessness and
further argued that they did present sufficient material facts to create an issue regarding
defendant Fox' negligent and reckless misconduct. The trial court agreed with defendants and
granted summary disposition on that basis.
We review a motion for summary disposition de novo. Spiek v Dep't of Transportation,
456 Mich 331, 337; 572 NW2d 201 (1998). Summary disposition is appropriate when there is
no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Auto-Owners Ins Co v Allied Adjusters & Appraisers, Inc, 238 Mich App 394, 397; 605 NW2d
685 (1999); MCR 2.116(C)(10).
I
Plaintiffs first argue that the trial court erred in granting summary disposition because it
applied the reckless misconduct standard instead of the less burdensome negligence standard.
We disagree.
The trial court correctly concluded that the reckless misconduct standard adopted in
Ritchie-Gamester v City of Berkley, 461 Mich 73; 597 NW2d 517 (1999), applies to this case. In
Ritchie-Gamester, the adult plaintiff sued the twelve-year-old defendant for carelessly skating
backward on an ice-skating rink, causing the two to collide, and further resulting in the plaintiff 's
injuring her knee from her fall on the ice rink. Id., 75. Our Supreme Court reviewed the
published cases in Michigan involving injuries to participants in recreational activities and
concluded that "there seems to be general agreement that participants in recreational activities
are not liable for every mishap that results in injury, and that certain risks inhere in all such
activities." Id., 81.
Next, our Supreme Court looked at the law in other jurisdictions and noted that the
majority of other jurisdictions have adopted a "reckless or intentional conduct" standard. Id., 82.
Our Supreme Court went on to note that, no matter whether the legal effect of participating in a
recreational activity is classified as "consent to inherent risks," "notice," "an implied contract," or
"assuming the risks," the bottom line is that people who engage in recreational activities
voluntarily "subject themselves to certain risks inherent in that activity." Id., 86-87. Thus, our
Supreme Court concluded:
With these realities in mind, we join the majority of jurisdictions and
adopt reckless misconduct as the minimum standard of care for coparticipants in
recreational activities. We believe that this standard most accurately reflects the
actual expectations of participants in recreational activities. As will be discussed
in more detail below, we believe that participants in recreational activities do not
expect to sue or be sued for mere carelessness. A recklessness standard also
encourages vigorous participation in recreational activities, while still providing
protection from egregious conduct. Finally, this standard lends itself to commonsense application by both judges and juries. [Id., 89.]
-2-
While plaintiffs do not quarrel with the holding in Ritchie-Gamester, they contend that
the standard in Ritchie-Gamester is not absolute but leaves room for other standards depending
on the factual circumstances of each case. In support of this contention, plaintiffs quote footnote
9 of the Ritchie-Gamester opinion. That footnote provides as follows:
We recognize that we have stated this standard broadly as applying to all
"recreational activities." However, the precise scope of this rule is best
established by allowing it to emerge on a case-by-case basis, so that we might
carefully consider the application of the recklessness standard in various factual
contexts. [Id., 89, n 9.]
Plaintiffs contend that we should carve out an exception to the Ritchie-Gamester standard
where an adult coach uses his "full effort" to play soccer against an eleven-year-old. However,
nothing in the above footnote invites exceptions for disparities in height, weight, age, or skill
level. On the contrary, our Supreme Court thought about those disparities in rendering its
opinion and concluded that, at least in the context of an "open skate," the risks of skating include
the reality that people "of various ages and abilities" will pile onto the ice in proximity to each
other. Id., 89.
Similarly, the risk of injury from a collision or kick is present whenever an individual
plays soccer. Although interaction with others varying in size, age, and ability can result in
serious injuries, the risk that an individual will be knocked down or kicked in an unprotected
area by someone older, stronger, or less experienced is an inherent risk of the game. Thus, the
mere fact that plaintiffs' minor son was injured in a collision with an adult coach rather than with
a larger child coparticipant is of insufficient distinction to take this case out of the realm of the
Ritchie-Gamester standard.
Further, the deposition testimony indicates that defendant Fox was as much a
"coparticipant" in the scrimmage as he was a coach. Rubin testified during deposition that both
he and Fox were involved in the scrimmage on the team opposing that of plaintiffs' son.
Accordingly, we hold that the trial court correctly applied the recklessness standard adopted in
Ritchie-Gamester.
II
Plaintiffs next argue that the trial court erred in granting defendants summary disposition
because a question of material fact existed regarding whether defendant Fox' conduct was
reckless. We disagree.
Our Supreme Court has previously defined reckless misconduct as follows:
"One who is properly charged with recklessness or wantonness is not
simply more careless than one who is only guilty of negligence. His conduct
must be such as to put him in the class with the wilful doer of wrong. The only
respect in which his attitude is less blameworthy than that of the intentional
wrongdoer is that, instead of affirmatively wishing to injure another, he is merely
willing to do so. The difference is that between him who casts a missile intending
that it shall strike another and him who casts it where he has reason to believe it
-3-
will strike another, being indifferent whether it does so or not." [Gibbard v
Cursan, 225 Mich 311, 321; 196 NW 398 (1923), quoting Atchison, T & SFR Co
v Baker, 79 Kan 183, 189-190, 98 P 804 (1908).]
Here, plaintiffs presented no documentary evidence in support of their contention that
defendant Fox' conduct was reckless. During his deposition, Frye-Behar testified that the ball
was kicked toward his goal and that he raced toward it. He further testified that as he slowed
down to pick up the ball from the goal area, defendant Fox, who was just one stride behind him,
hit the back of Frye-Behar's knee, knocking him down. Frye-Behar admitted that there have
probably been instances where he has tried to get the ball and missed, making contact with
another player, instead of the ball. He also averred that, while he had never seen a player kick a
goalie in the goalie box before his injury, it is not unusual for soccer players to get kicked during
the course of the game.
In his affidavit, Frye-Behar further averred that, while he did not actually see the blow to
his knee, he felt defendant Fox' toe and cleats strike him hard, and that the bruising was deep and
severe and stayed with him for a very long time. Frye-Behar further averred that, when he was
kicked, defendant Fox had "no chance to make a play on the ball."
Frye-Behar's sworn statements reveal that, at most, defendant Fox was pursuing FryeBehar in an effort to win the ball, but negligently kicked Frye-Behar's knee instead. The
evidence does not suggest that defendant Fox' conduct displayed such complete indifference
toward the risk of injury as to place defendant Fox in the same class as an intentional tortfeasor.
Although plaintiffs point out that, under standard soccer regulations, kicking a goalie's
knee in the goal area amounts to a "red card" violation, the trial court correctly dismissed this
argument. As the trial court itself recognized, our Supreme Court in Ritchie-Gamester expressly
refused to adopt the concurrence's position that breaches of rules regarding safety should be
actionable. Ritchie-Gamester, supra, 92.
Instead, our Supreme Court concluded that such a position would result in confusion, and
would lead to "more, rather than fewer, ancillary disputes." Id. As the Court explained:
In the case of soccer, which is officially a "non-contact" sport, where
would the concurrence draw the "negligence line" if a participant is injured when
she is fouled? Is a minor foul actionable? Is a foul that draws a "yellow card"
actionable? Or would the concurrence find the foul actionable if it results in a
"red card"? . . .
Surely all who participate in recreational activities do so with the hope that
they will not be injured by the clumsiness or over-exuberant play of their
coparticipants. However, we suspect that reasonable participants recognize that
skill levels and play styles vary, and that an occasional injury is a foreseeable and
natural part of being involved in recreational activities, however the "informal and
formal rules" are structured and enforced. [Id., 93-94.]
Thus, plaintiffs' argument that, had defendant Fox engaged in such conduct during the course of
an organized game, he would have received a "red card," does not indicate that defendant Fox'
-4-
conduct was reckless. In addition, because plaintiffs failed to establish that defendant Fox'
negligent conduct amounted to anything more than "clumsy" and "over-exuberant play," their
argument that the trial court erroneously granted defendants summary disposition lacks merit.
Affirmed.
/s/ Peter D. O'Connell
/s/ David H. Sawyer
/s/ Michael R. Smolenski
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.